McBride v. USA
Filing
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ORDER granting 3 Motion to Stay and this matter is hereby held in abeyance pending the Supreme Court's decision in Beckles. Thereafter, the government shall have 60 days from the date the Supreme Court decides Beckles within which to file its response in this matter. Signed by District Judge Martin Reidinger on 9/12/2016. (khm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00201-MR
CRIMINAL CASE NO. 1:00-cr-00069-MR-3
GEORGE MCBRIDE,
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Petitioner,
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vs.
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UNITED STATES OF AMERICA,
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Respondent.
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________________________________ )
ORDER
THIS MATTER is before the Court on the motion of the United States
requesting that the Court enter an order holding this action in abeyance. [CV
Doc. 3].1 According to the government’s motion, defense counsel does not
object to its request. [Id.].
Petitioner was found guilty of conspiracy to possess with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. [CR Doc.
112]. The presentence report noted that Petitioner had two prior qualifying
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Citations to the record herein contain the relevant document number referenced
preceded by either the letters “CV” denoting the document is listed on the docket in the
civil case file number 1:16-cv-00201-MR, or the letters “CR” denoting the document is
listed on the docket in the criminal case file number 1:00-cr-00069-MR-3.
convictions that triggered the Career Offender enhancement under § 4B1.2
of the Sentencing Guidelines: (1) a 1987 California conviction for involuntary
manslaughter; and (2) a 1993 California conviction for discharge of a firearm
with gross negligence. The Court sentenced Petitioner as a Career Offender
to a term of life imprisonment. [Id.].
On June 23, 2016, Petitioner commenced this action by filing a petition
pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In his petition, Petitioner
contends that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015),
his prior California convictions for discharge of a firearm with gross
negligence and involuntary manslaughter no longer qualify as “crimes of
violence” under the Guidelines. [Id. at 3-4]. Consequently, Petitioner argues
his Career Offender designation is improper and thus his sentence is
unlawful. [Id.].
In response to the petition, the government has filed a motion to hold
this proceeding in abeyance. [CV Doc. 3]. The government notes that this
case will be affected by the Supreme Court’s decision next Term in Beckles
v. United States, 616 Fed. Appx. 415 (11th Cir.), cert. granted, 2016 WL
1029080 (U.S. June 27, 2016) (No. 15-8544). [Id. at 2]. One of the questions
presented in Beckles is whether Johnson applies retroactively to cases
collaterally challenging federal sentences enhanced under the residual
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clause in U.S.S.G. § 4B1.2(a)(2). The residual clause invalidated in Johnson
is identical to the residual clause in the Career Offender provision of the
Guidelines, § 4B1.2(a)(2) (defining "crime of violence").
Based upon the reasons given by the government, and without
objection by Petitioner, the Court concludes that the government’s motion
should be granted.
ORDER
IT IS, THEREFORE, ORDERED that the government’s motion to place
this case in abeyance [CV Doc. 3], is hereby GRANTED and this matter is
hereby held in abeyance pending the Supreme Court’s decision in Beckles.
Thereafter, the government shall have 60 days from the date the Supreme
Court decides Beckles within which to file its response in this matter.
IT IS SO ORDERED.
Signed: September 12, 2016
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